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pr11-15-98

Intersex discrimination permissable under law according
to Pennsylvania court

It has been brought to our attention that the United States District
Court, E.D. Pennsylvania, is on record with a finding that discrimination
on the basis of a history of genital plastic surgery for an intersex condition
is permissible under the law. Note that the court did not make any judgment

about whether or not discrimination actually occurred in this case;
rather it found that, even assuming that discrimination alleged by plaintiff
had occurred, she is not entitled to relief under the law.

Below, some excerpts from 660 F. Supp. 176 (E.D.Pa 1987):

Worker brought action claiming employer discriminated against her based
on sex in violation of the Pennsylvania Human Rights Act by failing to
promote worker and terminating her solely because her employer learned
worker had undergone surgery to correct her hermaphroditic condition prior
to working for employer. Employer moved for summary judgment. The District
Court, O'Neill, J., held that Pennsylvania Supreme Court would find that
discrimination on basis of gender-corrective surgery did not constitute
discrimination on basis of sex under PHRA.

The plain meaning of the term "sex", as it is used in the statute, would
encompass discrimination against women because of their status as females
and discrimination against males because of their status as males.

I am further persuaded that the Supreme Court, if presented with the
issue, would not include plaintiff within the language of the PHRA, by
the established caselaw under Title VII.